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FTC Investigation Process

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Knowledgeable FTC Defense Lawyers Aggressively Defend Clients Facing Allegations of Fraudulent, Deceptive, and Unfair Business Practices

The Federal Trade Commission is the federal agency responsible for enforcing the United States anti-trust and consumer protection laws. While most people associated the FTC with consumer fraud investigations, the actual scope of the FTC’s authority is much broader. In short, almost every United States company falls within FTC regulation.

Over recent years, the FTC has been increasingly active in its enforcement efforts, bringing myriad administrative and judicial proceedings against both individuals and businesses. The FTC’s power to bring claims is extremely broad, given its mandate to “prosecute any inquiry necessary to its duties in any part of the United States.” If the FTC files a case in federal court, it may lead to civil or criminal penalties, including civil monetary penalties, criminal fines and lengthy terms of federal imprisonment.

At Oberheiden, P.C., we are a nationwide FTC defense law firm. Many of our veteran federal defense lawyers held high-ranking posts in the federal government, including within the FTC. In total, we have centuries of experience defending individuals and organizations in a wide range of anti-trust and consumer protection cases. Our FTC investigation defense attorneys take an aggressive approach in every investigation we handle, intervening early in the process in hopes of wrapping up an investigation quickly and efficiently, so your business can remain focused on what makes it successful—and not on defending an ongoing federal government lawsuit.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Joe Brown
Joe Brown

Former U.S. Attorney
& Former District Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Lynette S. Byrd
Lynette S. Byrd

Former Assistant U.S. Attorney

Partner

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

The Investigative Authority of the FTC

The FTC’s investigative authority is exceptionally broad. The following are a few of the federal statutes that FTC investigators regularly enforce:

  • Children’s Online Privacy Protection Act (COPPA)
  • Clayton Act
  • Consumer Leasing Act (CLA)
  • Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
  • Equal Credit Opportunity Act (ECOA)
  • Fair Credit Reporting Act (FCRA), Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA), and Fair and Accurate Credit Transactions Act (FACTA)
  • Fair Debt Collection Practices Act (FDCPA)
  • Fair Packaging and Labeling Act (FPLA)
  • Federal Trade Commission Act (FTCA)
  • Gramm-Leach-Bliley Act (GLBA)
  • Health Information Technology (HITECH) provisions of the American Recovery and Reinvestment Act
  • Truth in Lending Act (TILA), Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), and Credit Card Accountability Responsibility and Disclosure Act (Credit CARD Act)

At Oberheiden, P.C., our team of nationally recognized FTC defense attorneys have specific, hands-on experience handling all stages of an FTC investigation. Our clients regularly consult with our senior attorneys early on in the process, giving us the greatest opportunity to limit the scope of an investigation. By taking an aggressive approach early on, we’re able to resolve most FTC investigations without the filing of charges.

The Basics of an FTC Investigation

The first and one of the most important things to understand about FTC investigations is that they are not public. Thus, while the FTC is investigating an alleged violation, both the public as well as the subject of the investigation are often left in the dark.

The FTC is able to maintain the secrecy of its inquiries because most FTC investigations start of as informal investigations. The trigger for an informal investigation may stem from a consumer complaint, disgruntled employee, or a referral from another federal agency, such as the Federal Bureau of Investigation (FBI).

In an informal investigation, FTC investigators typically review publicly available information. However, an FTC investigator may reach out directly to a subject by sending an access letter, asking for voluntary cooperation. Access letters are not enforceable, meaning compliance is not mandatory; however, denying the FTC’s request for information may result in an informal investigation escalating to a formal investigation. Of course, if the FTC is satisfied with the subject’s response, it may be the end of the investigation. However, often, FTC investigators uncover something of concern, resulting in a formal investigation.

If the FTC initiates a formal investigation, it has a variety of investigative tools at its disposal, including subpoenas and Civil Investigative Demands. A subpoena typically compels the production of specific evidence, such as physical or electronic documents, for the investigators’ inspection. However, the FTC subpoena can also demand a witness appear and provide testimony. Civil Investigative Demands operate in a similar manner; however, the scope of a Civil Investigative Demand is typically much broader, potentially requiring the recipient to generate written reports or provide answers to specific questions. Both of these tools are compulsory, and businesses or individuals in receipt of an FTC subpoena or Civil Investigative Demand must comply or face the threat of being held in contempt of court. In some cases, if the subject continues to refuse to comply, the subject may face federal obstruction of justice charges, which carry additional criminal sanctions in addition to those resulting from the investigation. 

However, in certain cases, someone in receipt of an FTC subpoena or CID can challenge the enforceability of the instrument. Given FTC investigators’ familiarity with the laws and regulations they are charged with enforcing, this is rare. However, an experienced FTC defense attorney may identify deficiencies in a CID or subpoena, which can lead to the unenforceability of the investigative instrument.

The Investigative Authority of the FTC

The FTC’s investigative authority is exceptionally broad. The following are a few of the federal statutes that FTC investigators regularly enforce:

  • Children’s Online Privacy Protection Act (COPPA)
  • Clayton Act
  • Consumer Leasing Act (CLA)
  • Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)
  • Equal Credit Opportunity Act (ECOA)
  • Fair Credit Reporting Act (FCRA), Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA), and Fair and Accurate Credit Transactions Act (FACTA)
  • Fair Debt Collection Practices Act (FDCPA)
  • Fair Packaging and Labeling Act (FPLA)
  • Federal Trade Commission Act (FTCA)
  • Gramm-Leach-Bliley Act (GLBA)
  • Health Information Technology (HITECH) provisions of the American Recovery and Reinvestment Act
  • Truth in Lending Act (TILA), Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), and Credit Card Accountability Responsibility and Disclosure Act (Credit CARD Act)

At Oberheiden, P.C., our team of nationally recognized FTC defense attorneys have specific, hands-on experience handling all stages of an FTC investigation. Our clients regularly consult with our senior attorneys early on in the process, giving us the greatest opportunity to limit the scope of an investigation. By taking an aggressive approach early on, we’re able to resolve most FTC investigations without the filing of charges.

How to Effectively Handle an FTC Investigation

Facing an FTC investigation can seem overwhelming. Given the complexity of the laws and regulations involved as well as the high stakes, any FTC investigation requires an all-hands-on-deck approach. However, this type of effort can remove your focus from the day-to-day operations of your business. At Oberheiden, we’ve handled countless FTC investigations. Over time, we’ve identified an effective approach to handling FTC investigations. The following opportunities are where a well-constructed FTC defense strategy can make a difference in the ultimate outcome.

The Investigative Process

Perhaps the earliest opportunity to resolve an FTC investigation is by challenging the investigation itself. For example, at Oberheiden, P.C., we’ve successfully stopped investigations in their tracks by arguing that the evidence relied upon by the FTC was illegally obtained or patently unreliable. We have also successfully challenged the enforceability or scope of FTC subpoenas and Civil Investigative Demands.

Pre-Trial Resolutions

The path of an FTC investigation can be lengthy. Thus, there are ample opportunities to wrap up an investigation well before it reaches trial. While the possibility of a plea agreement is always on the table, we generally recommend holding off on pursuing such an agreement. Instead, we prefer to conduct an in-depth independent investigation looking for more favorable ways to resolve the investigation. For example, litigating a motion to dismiss certain claims. Successfully getting the court to dismiss certain claims can have a domino effect on the government’s case, causing it to fall apart. Of course, when a trial appears imminent, Oberheiden, P.C., has a team of skilled negotiators who can negotiate a favorable plea agreement, provided our client is open to such a resolution.

Trial Litigation

Just because a case is slated for trial does not mean that you will be found in violation of a federal law or regulation. There are ample defenses in all types of FTC investigations, including anti-trust and consumer protection cases. At Oberheiden, P.C., our FTC defense attorneys have extensive experience on both sides of federal administrative, civil, and criminal proceedings. We use this experience to achieve positive outcomes for our clients.

Sentencing

It is to put one’s head in the sand not to acknowledge that some FTC investigations will end in a sentencing hearing. While this is not the desired result, having an experienced FTC defense attorney in these situations is even more important. Federal judges and administration officers have wide discretion when fashioning sentences. At Oberheiden, P.C., we effectively gather all mitigating evidence to create a compelling case for a reduced sentence. Over the years, we’ve been able to effectively secure significantly reduced sentences that can keep or organizational clients in business and our individual clients out of prison.

Preserving Appellate Issues

Any trial attorney understands the importance of creating a well-documented record should the case end in an adverse result. By ensuring that the trial record reflects all objections and challenges accurately, we are able to ensure that your appellate rights remain intact. This will allow us to pursue appellate remedies in situations where the trial court came to an erroneous decision that negatively impacted the case.

At Oberheiden, P.C., our veteran FTC defense lawyers command an in-depth knowledge of the investigation process and advocate aggressively on our clients’ behalf at every step of the way.

Contact the FTC Investigation Defense Lawyers at Oberheiden, P.C., Today

If you recently received an FTC subpoena or Civil Investigative Demand, the situation warrants your full attention. The sooner you give Oberheiden, P.C. a call, the quicker we can get to work preparing a comprehensive defense strategy in hopes of wrapping up the investigation before it turns into something more burdensome. Our attorneys are available 24/7 to field your calls, answer your questions, and address your concerns. At Oberheiden P.C., we represent organizations nationwide in all types of federal investigations, including consumer protection and anti-trust matters. To discuss your situation, call 866-603-4540 or request a complimentary case assessment online.

Dallas 214-817-2053
Houston 713-454-7814
Detroit 313-634-0925
Baton Rouge 225-269-8749
New York 332-239-7345
Winter Park 407-890-0460
Miami 786-751-3247
Portland 207-222-7742
Nationwide 866-603-4540
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